Detention of Persons Present During the Execution of a Search Warrant: Bailey v. United States

Keeping up with changes in the law is crucial to a law enforcement officer’s ability to honor his oath to uphold the Constitution, to make sure the criminals the officer arrests are not released because of technicalities and to protect himself from a civil lawsuit. This article will discuss the case of Bailey v. United States, 133 S.Ct. 1031 (2013), decided last year, and offer some takeaways as to how to apply this case in the field.

In Bailey, the United States Supreme Court revisited the question of when law enforcement officers may detain persons present during the execution of a search warrant of a residence.

Facts: In Bailey, police were preparing to execute a valid search warrant on a residence to locate a .38-caliber handgun. The warrant was based on a confidential informant’s testimony that he was previously at the residence to buy drugs from “a heavyset black male with short hair” known to him as “Polo” and, while there, he saw the pistol. Just before the police were to execute the search warrant, they saw two men leaving the residence. Both men fit the general description of “Polo,” but officers did not know which, if either, of the two men was “Polo.”

The officers decided that it would be best for operational security if they let the two men leave before they detained them. So, they watched the men get in their car and drive away. Shortly thereafter, two officers followed the men for about five minutes before conducting a traffic stop about a mile away from the residence. During the stop, the two men were patted down. Nothing of significance was found on either man, but a key ring was found on Bailey.

Initially, Bailey claimed he was just leaving his home and gave as his address the address of the target of the search warrant. Officers put both men in handcuffs and drove them back to Bailey’s residence. On the way, officers advised they stopped the men because they were executing a search warrant. Bailey responded: “I don’t live there. Anything you find there ain’t mine, and I’m not cooperating with your investigation.” In the meantime, other officers had executed the search warrant and found a gun and drugs in plain view. One of the keys on the key ring found on Bailey opened the front door of the residence. A jury later convicted Bailey of three drug and firearm offenses. Bailey then appealed.

Question: Did police have the right to stop Bailey? (If not, his statements and the residence key should be suppressed.)

Ruling: The Supreme Court reversed the district and appellate courts and held that the search warrant did not authorize the police to stop Bailey after he left the “immediate vicinity” of the residence.

Rationale: The Supreme Court reaffirmed that, under Michigan v. Summers, 452 U.S. 1981 and Muehler v. Mena, 544 U.S. 93 (2005), officers may detain occupants of a premises while executing a search warrant of the premises. However, the Court was very aware that the rule articulated in these two cases was contrary to the general Fourth Amendment principle that a person shall not be seized unless there is either probable cause or reasonable suspicion that he committed or is about to commit a crime – the Summers and Muehler opinions allow police to detain and handcuff people just because they happen to be present when a search warrant is executed, even if the police have no reason to suspect them of any crime. Acting out of concern that expanding the rule of Summers and Muehler to allow officers to stop Bailey would undermine the Fourth Amendment, the Court decided to establish a bright line rule that a search warrant permits officers to detain only persons in the “immediate vicinity” of the premises subject to a search warrant.

Unfortunately, the Supreme Court chose not to define what “immediate vicinity” means. But it did provide some factors to be used in determining whether a person is in the “immediate vicinity:” the lawful limits of the premises, whether the occupant was within the line of sight of the premises and the ease of reentry onto the premises from the occupant’s location. The Supreme Court left the job of defining “immediate vicinity” to the lower courts in future cases.

Takeaways: Here are some practical takeaways from the Bailey decision:

You may still detain all people present in a residence during the execution of a search warrant without having to articulate any suspicion of wrongdoing.

You may still detain people who arrive at a residence while a search warrant is being executed without articulating any suspicion of wrongdoing.

If someone leaves a residence that is the subject of the search warrant before the warrant is executed, if you want to detain him under the authority of the warrant, you had better initiate the execution and detain him before he leaves the “immediate vicinity” of the property.

If someone leaves the “immediate vicinity” of a residence that is the subject of a search warrant before the warrant is executed, even though you can’t detain him by virtue of the warrant, you can still detain him if you have a founded suspicion that he has or is about to commit a crime (a Terrystop) or based upon probable cause. NOTE: Evidence found during the search of the home and communicated to officers can be used to establish the founded suspicion or probable cause for the detention of the person after he has left the “immediate vicinity.”

Your belief that you will never find the person again to make an arrest if you let him leave the premises before the search is commenced is NOT (by itself) a legally sufficient reason to detain the person under the authority of the search warrant once the person has left the “immediate vicinity” of the property.

You may detain people outside a residence during the execution of a search of that residence IF they are in still within the “immediate vicinity” of residence. However, since you can’t know what “immediate vicinity” means (since the Court didn’t define the term) it is our suggestion that you must be able to: (a) establish that the location of the people being detained is very close to the premises; (b) establish some connection between the person being detained outside the premises and the property being searched, and (c) offer specific facts as to why their detention increased the safety or efficiency of the operation.

Keep in mind that the men leaving the residence in Baileydid not know the police were about to execute a search warrant and, therefore, were not fleeing from the police or avoiding being present when the warrant was executed. The Supreme Court did not address that issue. If law enforcement reasonably believe people are fleeing a residence because they know a warrant is about to be executed, depending upon the circumstances, a strong argument can be made that those people may be detained beyond the “imminent vicinity” of the property.

We will conclude with a disclaimer. These takeaways, particularly No. 6 above, represent the outer limits of what is Constitutionally permissible and, therefore, may conflict with your Office’s policies or directives. Obviously, you should follow your Office’s policies or directives and you should direct any questions you may have concerning this subject to your in-house counsel, supervisors or State Attorney’s Office.